Obama's Clemency Legacy: An Assessment

Abstract

Shortly before the end of his term, President Obama published an article in the Harvard Law Review describing an approach to pardoning that harks back to an earlier time in our history when the pardon power played a routine operational role in the justice system. While acknowledging that clemency is “no substitute for achieving lasting changes to federal sentencing law through legislation,” he said it was “a way to restore a degree of justice, fairness, and proportionality to the system.” He said that he hoped “to set a precedent that will make it easier for future Presidents, governors, and other public officials to use it for good.”

This essay is a preliminary assessment of the Obama clemency legacy in terms of his own stated goals. Was he right about the proper role of pardon in the justice system, and did he accomplish his objectives in using his power? On the one hand, his expansive view of the pardon power is hard to square with a system of checks and balances, and carries with it an expectation of procedural and substantive fairness that may be hard to deliver on. At the same time, his belief that federal drug sentences have produced widespread injustice is widely shared, and his determination to try to do something about it was commendable. But the means he chose to accomplish his goals were fated to fall short, and his neglect of other less-fraught “second chance” clemency opportunities may have made it harder for his successor to use the power. In the end, by some measures he left the pardon power in a worse condition than he found it.